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Wednesday, January 25, 2012

On Monday, the Supreme Court delivered a limited victory (.pdf download) for privacy rights in United States v. Jones, holding that the police performed an unconstitutional search in this case. Although the majority opinion and two concurrences relied on different legal analyses, the decision signals the Court’s concern about the implications of new technologies for the Fourth Amendment’s protection of individual privacy.

District of Columbia police suspected Antoine Jones, a nightclub owner, of being involved in cocaine distribution. The warrant obtained by prosecutors allowed police to place a GPS tracking device on Jones's vehicle while it was in the District of Columbia and for ten days only. Instead, D.C. authorities placed the GPS device on Mr. Jones's car while it was located in Maryland and tracked Mr. Jones's car for a month. The device recorded Jones's vehicles movements continuously, 24 hours a day. Using the evidence gathered with the GPS device, authorities charged Mr. Jones with conspiracy to sell cocaine.

At his trial, Jones moved to suppress the GPS evidence as an unreasonable search and invasion of his privacy in contravention of the Fourth Amendment. The trial court refused to suppress the evidence and he was convicted and sentenced to life in prison. On appeal, the U.S. Court of Appeals for the D.C. Circuit found that the police violated Jones’s reasonable expectation of privacy by putting the device on his car without a valid court order.

The Supreme Court unanimously affirmed the decision of the D.C. Circuit, however, the justices split 5-4 on their reasons for doing so. Justice Scalia, writing for the Court and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, held that it is a “search” under the Fourth Amendment for law enforcement to place a GPS tracking device on a car and to use the device to monitor that car remotely. The majority revived a property-based approach to the Fourth Amendment for situations such as this one, in which a physical trespass has occurred, but left untouched the current “reasonable expectation of privacy” approach where no physical trespass is at issue.

Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment. However, Justice Alito would not have held that the installation of the GPS device was a search. Instead, he expressed his view that it was the long-term monitoring with the device that violated a reasonable expectation of privacy. He also criticized the majority for what he described as reliance on “18th Century tort law.” According to the concurrence, the majority’s property-based approach might not protect privacy as much as is required, particularly with the continuing advance of technology.

Justice Sotomayor, who joined the majority, also wrote a concurring opinion. In it, she signaled her openness to a potentially significant expansion of privacy rights. She stated that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

In sum, the majority’s holding in this case – and thus the law of the land – is that the installation and use of a GPS tracker on an automobile constitutes a “search.” Whether or not a warrant is required for such a search remains an open question, and one that will undoubtedly trouble privacy advocates. Nevertheless, the three opinions written in this case make it clear that the justices are concerned with what new technology means for personal privacy rights, a concern that will likely be fleshed out further in cases to come.